"[A] reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of occasions, and then only because of a clear abuse of discretion.'"
How later courts described this case
- "[A] reviewing court will disturb a trial court's award of counsel fees 'only on the rarest of occasions, and then only because of a clear abuse of discretion.'"
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2490-23
SANDRA PAEZ,
Plaintiff-Respondent,
v.
RUBEN MOSCOSO, SR.,
Defendant,
and
RUBEN MOSCOSO, JR. and
OMEGALFA CONSTRUCTION,
a business entity,
Defendants-Appellants.
___________________________
Submitted January 28, 2026 – Decided May 11, 2026
Before Judges Currier, Smith and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4566-19.
Charles Shaw PC, attorneys for appellants (Charles
Shaw and Aurelia Georgopoulos, on the briefs).
Raymond A. Grimes, PC, attorney for respondent
(Raymond A. Grimes, on the brief).
PER CURIAM
In this contract dispute between plaintiff and defendants regarding the
renovation and remodeling of a residence, defendants appeal from multiple
orders regarding discovery issues, admissibility of certain evidence during trial
and for attorney's fees and costs. After review of defendants' contentions in
light of the record and applicable principles of law, we affirm.
I.
Plaintiff purchased the subject building in 2016 as an investment property.
She intended to convert the one-family house into a two-family home by
transforming the above-ground basement, or first-floor, into an apartment to use
as a rental unit. At the time of the purchase, the second-floor apartment was
occupied by tenants holding a one-year lease at a monthly rate of $1,700.
Plaintiff was living in a rented apartment in Brooklyn.
In April 2018, plaintiff contacted defendant Ruben Moscoso, Jr.1 (initially
through a third party) requesting his assistance in procuring a specific type of
1
The court dismissed the claims against Ruben Moscoso, Sr. on September 18,
2023. We refer to Moscoso, Jr. as Moscoso.
A-2490-23
2
loan to fund renovations to the building. Although plaintiff was subsequently
denied the loan, she retained defendants to perform the construction work.
Plaintiff executed a contract in July 2018 with defendant Omegalfa
Construction.2 Pursuant to the contract, defendants agreed to repair and remodel
the residential premises in accordance with plaintiff's architectural plans , at a
contract price of $83,940. Prior to hiring Omegalfa, plaintiff used two different
contractors to perform demolition work in the basement. Upon his first site
inspection, Moscoso described the premises as being "in pretty rough
condition."
Defendants began working on the property in August 2018 but
encountered numerous issues with the architectural plans that required revisions
and new permit applications, repairs needed for a pre-existing plumbing issue
on the second floor, and delays due to weather.
By the end of January 2019, all major work had passed inspection and was
approved. According to Moscoso, defendants continued work until August
2019, including doing sheetrock, spackling, sanding, priming, flooring,
2
The signature on the contract does not indicate if it is Ruben Moscoso, Sr. or
Jr.
A-2490-23
3
installation of molding and doors, and all the finish work. Moscoso contends
defendants had completed 90% of the contracted work.
However, around that time, according to Moscoso, plaintiff stopped
communicating with him. After this occurred, he came to the site one day and
observed other people doing work. Moscoso said plaintiff never told him to stop
working or that she was replacing him with other workers. He testified that her
actions prevented defendants from completing the work.
Plaintiff stated that she dismissed defendants from the job in September
2019 because the construction had been ongoing for eight months, the work was
not getting done, and she did not want more time to go by without tenants. The
jury was shown numerous photographs depicting the state of the construction at
various stages. Plaintiff testified that she permitted the upstairs tenants to break
their lease in April 2019, after they complained about the excessive noise and
poor living conditions due to the ongoing construction.
II.
In September 2019, plaintiff filed a complaint against defendants with the
Better Business Bureau alleging she had paid defendants two-thirds of the
monies due under the contract—$60,000—and refused to make any further
A-2490-23
4
payments. Defendants responded they had completed at least 90% of the work
so plaintiff owed 90% of the contract price.
III.
In November 2019, plaintiff filed a complaint against defendants for
breach of contract due to negligent construction work and violations of the New
Jerey Consumer Fraud Act (CFA), N.J.S.A. 56:8-2 to -233. Plaintiff sought
damages for current and future costs incurred to correct the faulty work and
treble damages under the CFA. Plaintiff stated she lost $1,700 in rent for the
second-floor apartment. Defendants filed an answer and counterclaim. After
defendants requested a statement of damages, plaintiff submitted a statement
listing $29,000 as her damages.
In December 2020, plaintiff served defendants with an expert report from
David M. Bekus, alleging damages in the amount of $29,715.
The initial discovery end date (DED) was extended by stipulation to
February 2021. Thereafter, defendants moved to extend the DED and the court
granted an extension until June 2021. The order provided deadlines for the
service of expert reports and completion of depositions and stated: "The court
finds exceptional circumstances to reopen and extend discovery given delays
caused by [COVID]-19 in conducting discovery. The new [DED] is June 6,
A-2490-23
5
2021 at which point this case would have had 480 days of discovery. Arbitration
is rescheduled to August 12, 2021."
On May 6, 2021, defendants moved to extend the DED to August 2021.
On May 24, defendants served their first requests for discovery to plaintiff.
Plaintiff did not respond to the requests since they were returnable after the
DED. The court denied the motion to extend the DED and the subsequent
reconsideration motion. Defendants appeal these orders.
Arbitration took place in August 2021. Plaintiff was awarded $15,000 for
repairs and completion of construction work. Defendants rejected the arbitration
award and filed a request for a trial de novo. In September 2021, the trial court
scheduled the matter for trial on November 30, 2021. However, as trials were
occurring on a limited basis due to the strictures of COVID-19, the court later
adjourned the trial to May 4, 2022. The trial was rescheduled several more times
with the final date being September 11, 2023.
IV.
On the first day of trial the court considered the motions in limine filed by
both parties. Plaintiff sought to introduce evidence of two prior lawsuits in
which defendants were involved with other entities. Defendants requested the
A-2490-23
6
court bar plaintiff's expert report, prohibit plaintiff from introducing evidence
not produced during discovery, and dismiss the CFA claims.
The court denied defendants' motion to preclude evidence of prior
lawsuits. The court ruled they were admissible to impeach Moscoso's testimony
that there were no prior complaints against the company. Defendants appeal
from this order.
In considering defendants' motions, the court denied their motion to bar
plaintiff's expert report as net opinion. Defendants also sought to preclude the
amendment to the report received on the first day of trial, in which the expert
was amending his damages figure from $29,000 (stated in his original October
2020 report) to $70,000. Plaintiff also intended to produce a witness—a
subsequent contractor hired in 2023—to testify as to the work and costs that
were incurred to remedy defendants' alleged shoddy work. Defendants argued
the new contractor came onto the scene four years after plaintiff terminated their
contract and the incurred costs were for work to a sewer line which was not
within the scope of defendants' contract.
The court denied defendants' application, finding that since defendants
had not served timely discovery demands, they could not move to bar plaintiff
A-2490-23
7
from presenting expert and lay testimony outside of the previously submitted
expert report.
Defendants also moved to preclude plaintiff from introducing evidence of
lost rental income. Plaintiff intended to testify that, had the renovations and
construction work been completed properly, she could have received $1,400 in
monthly rent for the new first-floor apartment from 2019 until the time of trial
in September 2023. The court granted defendants' motion, finding that
defendants had served a demand for damages and expert opinions with their
answer in 2019 and plaintiff had an ongoing obligation to supplement her
discovery responses. The trial court found that plaintiff had never previously
alleged that she lost rent for the new apartment due to defendants' failure to
timely complete the project.
During her testimony, plaintiff testified regarding the contents of a series
of email correspondence and WhatsApp messages she had with defendants and
the architect. Defendants did not object to the testimony or admission of the
correspondence but apparently sometime thereafter moved for the court to
exclude it. The court denied it on September 18, 2023, stating defendants did
not serve discovery demands on plaintiff and so were not entitled to object to its
use or admission. Defendants appeal from this order.
A-2490-23
8
Also on September 18, the court again denied defendants' motion to bar
Bekus's expert report and testimony, finding it was not a net opinion. The court
found Bekus was qualified to testify and that he had a factual basis to support
his opinions.
After plaintiff rested her case, defendants once again moved to dismiss
the CFA claims on the grounds that there was no ascertainable loss. The trial
court reserved decision until after the presentation of defendants' case.
On September 19, the court found plaintiff had established violations of
the CFA, but reserved decision on whether plaintiff suffered an ascertainable
loss because of those violations. The court also dismissed defendants'
counterclaim for breach of contract.
The court further addressed plaintiff's motion to reconsider its ruling
prohibiting plaintiff from testifying about her lost rental income from the first-
floor apartment. The trial court cited to Lang v. Baker, 101 N.J. 147, 157 (1985),
and held that the statement of damages under Rule 4:5-2 was not binding. In
addition, defendants had not conducted any discovery to flesh out plaintiff's
damages. The court also held that plaintiff was not restricted to the damages
number set forth by Bekus in his expert report because the opinion only reflected
the amount of money needed to repair or complete the work.
A-2490-23
9
Therefore, the trial court permitted plaintiff to be recalled to provide
testimony regarding the lost rent from the first-floor apartment due to
defendants' failure to timely complete the project. Defendants further objected
to the ruling on the grounds that plaintiff was not qualified to provide an opinion
as to the rental value of the new apartment. The court found that plaintiff was a
landlord who had rented out the second-floor apartment and was therefore
permitted to testify as a lay witness regarding the rent she intended to charge
and expected to receive.
Thereafter, plaintiff testified that based on her knowledge of rental values
in the area and her lease for the upstairs apartment, she would have rented out
the first-floor apartment for $1,400 a month. She expected to start renting the
apartment in December 2018.
Following this testimony, the court denied defendants' motion to dismiss
the CFA claims, finding there was a question of fact regarding the ascertainable
loss arising from the lost rent for the first-floor apartment.
A-2490-23
10
On September 21, 2023, the jury returned a verdict in favor of plaintiff,
finding defendants breached the contract, and awarding $29,715 in damages.3
The jury also awarded $1,700 as "other damages" for the loss of rent for the
upstairs apartment.4 Although the jury found defendants violated the CFA in
several aspects, it determined plaintiff only proved damages for the failure to
provide a start and end date on the contract. The jury awarded $43,000 for that
violation. The trial court tripled the $43,000 damage award on the CFA
violations to $129,000.
After considering plaintiff's application for counsel fees and costs on
February 8, 2024, the court awarded attorney's fees of $52,500 as well as
prejudgment interest and costs.
On October 2, 2024, the court entered an order for judgment in favor of
plaintiff and against defendant Omegalfa in the amount of (1) $35,250.98 for
breach of contract and "other damages," and (2) $3,835.98 in prejudgment
interest. Judgment was entered against Omegalfa and Moscoso for the trebled
3
This was the amount of the damages claim as opined to by Bekus. The court
instructed the jury to determine whether plaintiff had proven those damages
were proximately caused by defendants' breach of contract.
4
In reading its verdict, the foreperson stated the $1,700 was for the loss of rent
for the upstairs tenants.
A-2490-23
11
damages of $129,000 arising out of the violations of the CFA, plus $5,250.69 in
prejudgment interest; and $54,263.83 in attorney's fees and costs for the total
amount of $188,514.52.
V.
On appeal, defendants contend that the court erred in: (1) denying their
motion to extend the DED because of the COVID-19 pandemic, and the court's
failure to use the "good cause" standard rather than the "exceptional
circumstances" standard; (2) denying their motion to bar plaintiff's expert report
and testimony as it constitutes an inadmissible "net opinion" 5; (3) granting
plaintiff's motion to reopen discovery to allow her to testify as to lost rental
income of the first-floor apartment; (4) denying their motion to dismiss
plaintiff's claims to recover damages for violations of the CFA on the grounds
that plaintiff did not suffer an ascertainable loss; (5) granting plaintiff's motion
to introduce two lawsuits involving defendants to challenge Moscoso's
credibility; (6) allowing plaintiff to introduce evidence of email correspondence
5
Defendants also appeal from a September 22, 2023 order denying defendants'
motion to bar plaintiff's expert report and testimony as moot. Defendants'
motion was already heard and decided by the court on September 18, 2023. We
need not separately address the September 22, 2023 order.
A-2490-23
12
and WhatsApp messages; and (7) granting plaintiff's application for attorney 's
fees and costs.
We consider each issue in turn.
Order Denying Extension of the DED
On May 6, 2021, defendants filed a motion to extend discovery. Despite
this being the third request for an extension, defendants had not served any
discovery demands upon plaintiff in the twenty months since the filing of the
complaint. Defense counsel certified very generally that she and office staff
were working at home until December 2020. A different attorney in the office
certified he contracted COVID-19 in March 2021.
In denying the motion, the court stated:
The motion to extend [discovery] is denied without
prejudice as this case is scheduled for arbitration and
movant has failed to [make] a showing of exceptional
circumstances as required under [Rule] 4:24-1(c). In
opposition, [p]laintiff asserts that defendant[s] ha[ve]
not served or conducted any discovery despite the
passing of one year and three months of discovery.
While the court is mindful of the [COVID]-19
pandemic, the court does not find working [from] home
or contracting [COVID]-19 after the March 19, 2021
[DED extension] order was issued to justify the failure
to conduct any discovery in this case during the 480
days afforded by the court.
[(Citation reformatted).]
A-2490-23
13
The court also denied the subsequent motion for reconsideration.
Rule 4:24-1(c), in place at the time of defendants' application, provides in
pertinent part:
If the parties do not agree or a longer extension is
sought, a motion for relief shall be filed . . . and made
returnable prior to the conclusion of the applicable
discovery period. . . . [I]f good cause is otherwise
shown, the court shall enter an order extending
discovery. . . . No extension of the discovery period
may be permitted after an arbitration or trial date is
fixed, unless exceptional circumstances are shown.
[(Emphasis added).]
In Castello v. Wohler, 446 N.J. Super. 1, 25 (App. Div. 2016), we noted
the exceptional circumstances standard applied to extensions sought when an
arbitration date (or trial date) was in place, stating:
The moving party must satisfy four inquiries to extend
discovery based on exceptional circumstances: (1) why
discovery has not been completed within time and
counsel's diligence in pursuing discovery during that
time; (2) the additional discovery or disclosure sought
is essential; (3) an explanation for counsel's failure to
request an extension of the time for discovery within
the original time period; and (4) the circumstances
presented were clearly beyond the control of the
attorney and litigant seeking the extension of time.
[Quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 79
(App. Div. 2005).]
A-2490-23
14
Here, the court found working from home and contracting COVID-19 did
not constitute exceptional circumstances to justify a further extension of the
DED. We also note counsel did not supply any facts to support their "diligence
in pursuing discovery," nor did counsel specify what discovery needed to be
completed, other than informing they intended to schedule depositions and serve
expert reports "to the extent necessary."
Having reviewed the court's order for abuse of discretion, we find none.
See Brugaletta v. Garcia, 234 N.J. 225, 240 (2018).
Before this court, defendants rely on Hollywood Café Diner, Inc. v. Jaffee,
473 N.J. Super. 210, 220 (App. Div. 2022), to argue that the trial court should
have considered the extension application under a good cause standard.
Hollywood Café was issued in 2022, after these events. Nevertheless, we are
satisfied defendants' scant generalized reasons for the needed extension would
not constitute good cause. As stated, defendants had not yet served any
discovery requests.
Defendants' Motion to Bar Plaintiff's Expert Beckus and to Dismiss
Plaintiff's Claim to Recover Construction Damages Based on Breach of
Contract
Defendants contend the court erred in denying their motion to bar Bekus's
expert report as it was inadmissible net opinion under N.J.R.E. 703. After
A-2490-23
15
reviewing the court's decision for an abuse of discretion, we discern none.
Following extensive questioning, the court found Bekus was qualified, he visited
the premises, spoke with plaintiff and took photographs. He also included a
damages calculation. All of defendants' arguments concern the weight of the
evidence, which defense counsel raised during cross-examination of the expert.
The court did not err in admitting the report and testimony.
Order Granting Plaintiff's Motion to Reopen Her Case-In-Chief to Permit
Her Testimony on Lost Rental Income
As set forth, the trial court considered this issue several times during the
trial. Ultimately, the court permitted plaintiff to testify as to the rental income
she lost because the new first-floor apartment was not finished in the expected
timeframe. Defendants contend the court erred in permitting the testimony
because they were not apprised of this element of damages until the first day of
trial, and plaintiff was not an expert in rental values.
The court did not abuse its discretion in this ruling. Defendants did no
discovery. Had they requested plaintiff to timely answer interrogatories,
plaintiff would have been bound under Rule 4:17-7 to supplement and amend
those interrogatories prior to trial with any further new information. Defendants
also did not depose plaintiff. Therefore, she was never asked about her elements
of damages including her expectation of renting the first-floor apartment.
A-2490-23
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Plaintiff was not qualified as an expert. She testified as a lay person
regarding the rental value she expected to receive for the first-floor apartment.
She based the value on her experience of renting out the second-floor apartment
as well as her knowledge of comparable rental values in the area. Plaintiff
further testified that she had conversations with defendants while the project
was ongoing of the need to timely finish the first-floor apartment so she could
rent it out as the building was purchased as an investment property.
Order Denying Defendants' Motion to Dismiss Plaintiff's Claims to
Recover Treble Damages for Violations of the CFA
For the reasons stated above, there is no merit to defendants' argument on
this point. Plaintiff testified as to the damages she claimed regarding the loss of
rent from the first-floor apartment. The jury found plaintiff demonstrated an
ascertainable loss (although it awarded plaintiff half of what she sought) from
defendants' violation of the CFA.
Order Granting Plaintiff's Motion to Introduce Evidence of Two Lawsuits
Involving Defendants to Challenge Moscoso Jr.'s Credibility
Plaintiff moved in limine to admit evidence of two Superior Court cases
involving Omegalfa to impeach Moscoso's credibility regarding an interrogatory
response. The court permitted the evidence and issued the jury several limiting
instructions as to its use.
A-2490-23
17
Interrogatory 12 asked: "If you contend that the party propounding these
interrogatories was guilty of negligence, set forth all facts, not conclusions on
which you base that allegation of negligence." Moscoso responded in December
2020, in relevant part: "[W]e have been in business since 2008 and have never
had one complaint in 11 years." However, Omegalfa was named in a
counterclaim in a 2020 Bergen County suit and as a defendant in a 2019 Hudson
County action.
The court granted the motion, stating:
I'm going to allow it because you can't say that [you've]
never had a complaint filed against [you] when there
were two other civil lawsuits, complaints like this
complaint filed against [defendants]. And in the
Interrogatory answer he doesn't clarify.
I don't know how much . . . weight [the jury is]
going to give it, but I'm going to allow it.
Defense counsel asked Moscoso to explain his interrogatory answer
during his testimony and plaintiff's counsel cross-examined him on it. The court
gave the jury several limiting instructions regarding the purpose of the testimony
and its use of the evidence. The court also referenced the limited use of the
evidence in the jury instructions. We see no abuse of discretion in permitting
the evidence.
A-2490-23
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Order Permitting Plaintiff to Introduce Evidence of Email
Correspondence and WhatsApp Messages
The parties communicated with each other via email and an app—
WhatsApp. Plaintiff's counsel asked plaintiff about several messages between
she and Moscoso through the app, which included photographs. Plaintiff moved
to admit the evidence without objection.
It appears that on the following trial day, defendants objected to the
admission of the WhatsApp evidence. The court overruled the objection,
stating:
Now what we are talking about, obviously, with
the [WhatsApp messages] are prior statements that . . .
[d]efendant had with . . . [p]aintiff that . . . [p]laintiff
used [in] her case in chief. There was no discovery
request to . . . [p]laintiff to produce any statements by
any parties or any persons that . . . [p]laintiff intends to
use at trial. So therefore, that discovery obligation is
out the window.
It was not required to be disclosed in discovery
and I’m gonna permit it to . . . remain.
Without conducting discovery, defendants cannot now argue these
messages and emails between plaintiff and Moscoso were undisclosed or a
surprise. In addition, plaintiff testified that Moscoso insisted on using
WhatsApp for communications, a statement Moscoso did not contradict in his
A-2490-23
19
own testimony. Nor did Moscoso assert the emails were not authentic. We
discern no reason to disturb the court's evidentiary ruling.
Order Granting Plaintiff's Application for Attorney's Fees and Costs
Defendants contend since it was error for the court to permit the CFA
claim to proceed to the jury, they are not liable for counsel fees. Because we
have not found error in the court's orders regarding the CFA claim, we need not
address this argument. After proving an ascertainable loss arising from a CFA
violation, plaintiff was entitled to counsel fees under the statute. N.J.S.A. 56:8-
19.
Defendants also assert the award of fees and costs was unreasonable. We
disagree.
Plaintiff requested approximately $103,000 in counsel fees and costs in a
detailed certification of services with itemized billings. The court considered
the hourly rates and reasonableness of the specific billings and reduced the fee
award to $52,500. We see no abuse of discretion. See Litton Indus. Inc. v. IMO
Indus., Inc., 200 N.J. 372, 386 (2009) ("[A] reviewing court will disturb a trial
court's award of counsel fees 'only on the rarest of occasions, and then only
because of a clear abuse of discretion.'") (quoting Packard-Bamberger & Co. v.
Collier, 167 N.J. 427, 444 (2001)).
A-2490-23
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Affirmed.
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